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Domijan v. City of New Britain

CASE NO. 2067 CRB-6-94-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 20, 1996

MARK DOMIJAN

CLAIMANT-APPELLEE

v.

CITY OF NEW BRITAIN

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant appeared pro se on appeal and at the formal hearing below. He was not present at oral argument.

The respondents were represented by Seth Feigenbaum, Esq., Corporation Counsel, City of New Britain, 27 West Main St., New Britain, CT 06051.

The Second Injury Fund was not represented at oral argument. Notice sent to Yinxia Long, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 3, 1994 Finding and Dismissal of the Commissioner acting for the Sixth District was heard October 13, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent City of New Britain has petitioned for review from the June 3, 1994 Finding and Dismissal of the Commissioner acting for the Sixth District. The respondent argues that the trial commissioner improperly denied transfer of the instant claim to the Second Injury Fund. We agree, and reverse the commissioner’s decision.

On August 15, 1989, a Certificate of Acknowledgment of Physical Defect describing the claimant’s “s/p-slipped 5th lumbar disc” was approved by the Sixth District Commissioner. The claimant suffered a new back injury arising out of and in the course of his employment on May 20, 1993. The trial commissioner cited the reports of Dr. Becker, the claimant’s treating physician, who diagnosed the claimant as having a back sprain and apparent right radiculopathy from the compensable injury, as well as degenerative disc disease at the L4-L5 and L5-S1 levels. Dr. Becker wrote a letter on August 13, 1993 stating that the claimant’s disability “as a result of his new injury 5/20/93 is attributable in a material degree to his pre-existing condition described in his Acknowledgment of Physical Defect form.” The trial commissioner described this letter as a legal conclusion without any language that would permit the trier of fact to make the same conclusion. He ruled that the respondent had not satisfied its burden of proving that the claimant’s injury was attributable to the condition described in the Certificate of Acknowledgment, and dismissed the city’s attempt to transfer liability to the Second Injury Fund under § 31-325 C.G.S.1 The respondent has appealed from that decision.

The question before the trier at the formal hearing was whether the claimant’s injury was attributable in a material degree to the slipped L5 disc listed in the acknowledgment. Charles v. Ansonia Copper & Brass, Inc., 12 Conn. Workers’ Comp. Rev. Op. 228, 230-31, 1447 CRB-5-92-6 (March 23, 1994). The commissioner stated that he was “not convinced by the evidence submitted at the Formal Hearing that there is substantiation, documentation, or rationale presented by the City in order to sustain its burden of proof on this issue.” We have often stated that the trial commissioner’s conclusions must stand unless they result from a misapplication of the law to the facts or from an illegal or unreasonable inference drawn from the subordinate facts. Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). It is the commissioner’s duty to evaluate the credibility of witnesses and other evidence, and to make factual findings therefrom. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979). Only facts found without evidence or a failure to include undisputed material facts may cause us to disturb the findings on review. Plitnick, supra, citing Grady v. St. Mary’s Hospital, 179 Conn. 662, 669 (1980).

Normally, when a trial commissioner rules that a claimant has not met his burden of proof, we defer to that decision in accordance with the principles stated above. In this case, however, it appears from the Finding and Dismissal that the commissioner overlooked a portion of the evidence. He stated that the respondent relied on Dr. Becker’s letter of August 13, 1993, and that said letter contained a legal conclusion only, without any supporting language. This is an accurate statement. What the commissioner did not do, unfortunately, is address the medical reports of Dr. Becker, which explained the claimant’s history of back injuries, his pre-existing lumbar disc disease, and the likelihood that his back sprain aggravated the pre-existing disease. (Respondent’s Exhibit B). This evidence would constitute direct and significant support for the respondent’s position, if accepted. No findings were made regarding that subject.

The defect or condition named in a Certificate of Acknowledgment need not directly cause the subsequent injury in order for the latter injury to fall within the scope of the acknowledgment. Czipulis v. Hamilton Standard, 5 Conn. Workers’ Comp. Rev. Op. 14, 15, 345 CRD-1-84 (March 24, 1988); Shea v. Cly-Del Mfg. Co., 4 Conn. Workers’ Comp. Rev. Op. 37, 38-39, 390 CRD-5-85 (March 19, 1987). If the consequences of the injury, i.e. disability, are attributable to the acknowledged defect, liability may be transferred to the Second Injury Fund. Id. Here, it appears that the respondent made a prima facie case that the results of the claimant’s back injury were attributable to the pre-existing slipped lumbar disc. The Second Injury Fund offered no medical evidence to contradict that, nor did it file a brief or appear at oral argument in support of its position on appeal. We therefore rule that the trial commissioner’s decision should be reversed, and the case remanded for further consideration of all the evidence.

Commissioner Roberta Smith Tracy concurs.

AMADO J. VARGAS, COMMISSIONER, DISSENTING. Section 31-325 C.G.S. requires that a claimant’s injury be attributable in a material degree to the condition described in the Certificate of Acknowledgment in order for liability to transfer to the Second Injury Fund. As I stated in my dissent in Valechko v. Connecticut Light & Power, 2062 CRB-6-94-6 (decided Dec. 1, 1995), it is not enough that an injury merely be to the same body part; a trial commissioner must be able to locate a causal link between the pre-existing disability and the subsequent injury.

The trial commissioner did not find sufficient evidence to reach such a conclusion in this case, and dismissed the respondents’ claim for transfer of liability. A review of the transcript indicates that the claimant testified on cross-examination that almost fifteen years had elapsed between the softball-related injuries originally causing the slipped disc and the 1993 compensable back sprain, and that he never experienced serious back pain during that timespan. (Transcript, p. 9-11). He also testified that he could not remember having a specific discussion with Dr. Becker concerning his pre-existing condition. (Transcript, p. 13). The commissioner was not required to accept either the credibility of the medical evidence offered by the respondent or its sufficiency to establish the respondent’s case. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995). I therefore dissent from the majority’s decision to reverse the trial commissioner’s ruling.

1 At the time of the claimant’s compensable injury, § 31-325 provided in part that “[n]o acknowledgment shall be a bar to a claim by the person signing it . . . for compensation for any injury arising out of and in the course of his employment, . . . which injury shall not be found to be attributable in a material degree to the particular condition described in the acknowledgment. The rights and liabilities of the parties to the acknowledgment as to injuries arising out of and in the course of the employment and within the terms of the acknowledgment shall be as provided by section 31-349.” BACK TO TEXT

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